Local Probate Rules of Court

PROBATE RULE 2 NOTICES, PETITIONS, DECLARATIONS, AND ORDERS

A. PREPARATION OF NOTICES, PETITIONS, DECLARATIONS, ORDERS AND PRINTED PROBATE FORMS
B. SIGNATURE BY ATTORNEY
C. NOTICE
D. NOTICE TO PERSONS WHOSE ADDRESSES ARE UNKNOWN
E. PETITIONS FOR EX PARTE ORDERS
F. PROBATE ORDERS
G. ORDERS CORRECTING CLERICAL ERRORS
H. LATE FILINGS
I. FACSIMILE FILING

A. PREPARATION OF NOTICES, PETITIONS, DECLARATIONS, ORDERS, AND PRINTED PROBATE FORMS

Only current Judicial Council forms, local forms authorized by Santa Clara County, or pleadings typed on pleading paper in compliance with the CRC are acceptable for filing. Judicial Council forms are available on the Judicial Council website http://www.courtinfo.ca.gov.

(Eff. 1/01/09)

B. SIGNATURE BY ATTORNEY

(Eff. 1/01/09)

In addition to the requirements of CRC 7.103, an attorney who prepares a petition or other pleading (including those on Judicial Council forms) must sign the document.

(Eff. 1/01/04)

C. NOTICE

Although the Probate Code may require the probate clerk to cause notice of hearing to be given, the practice in Santa Clara County is for the petitioner or attorney to cause notice to be served and file proper proof of service. See also CRC 7.50 through 7.54.

(Eff. 1/01/04)

D. NOTICE TO PERSONS WHOSE ADDRESSES ARE UNKNOWN

Where the address of a person to whom notice is required to be mailed or delivered in a probate proceeding, including guardianships conservatorships, and trusts, is unknown, the court will require an affidavit or declaration stating with specificity the efforts that have been made to locate the person, as described in CRC 7.52.

(Eff. 1/01/04)

E. PETITIONS FOR EX PARTE ORDERS

Unless notice is specifically required by the Probate Code, Court order, or these rules, matters may be presented ex parte.

All ex parte petitions and other ex parte pleadings and supporting documentation must first be presented to the Probate Examiner's office for review.

An ex parte petition or application must contain sufficient facts to justify the orders requested. See also CRC 7.55.

(Eff. 1/01/09)

The procedures for submitting ex parte matters to the Probate Court, except in temporary guardianships and conservatorships, are as follows:

(1) The petitioner must first determine if there is anyone who would oppose the matter if he or she knew about it.

(2) If there will be no objection, and the matter is:

• Not urgent: Submit the petition to the Probate Examiner's office.
  
  
• Urgent: Contact the Probate Examiner's office for an appointment

(3) If there will be an objection, and the matter is:

• Not urgent: Do not submit it ex parte. Instead, have the matter set for a noticed hearing on the regular Probate calendar.
  
  
• Urgent: Contact the Probate Examiner's office to discuss how the matter will be specially set for hearing. In most cases, the petitioner will be referred to the Probate Judge's courtroom clerk for coordination with the Judge's calendar and the opposition a time when the matter may be heard by the Court.

(4) Notice: A notice and copy of the petition must be served on all parties 24 hours before presenting the ex parte petition to the Court. The petition and a proposed order shall be presented to the Probate Examiner's office with a declaration regarding giving notice. If the matter does not require immediate action, defined to mean action within the day the matter is presented to the Court, the Court will allow 48 hours, not including weekends or holidays, for the opposing party to present opposition. The Court may dispense with notice for good cause shown.

(5) Temporary guardianships and conservatorships: The above procedures do not apply to temporary guardianships and conservatorships. See Sections 11.T and 12.J of these Rules.

(Eff. 1/01/09)

F. PROBATE ORDERS

All orders in probate matters must be complete and bear the noticed hearing date and department. All orders of distribution must include complete legal descriptions of any real property being distributed. If a matter is taken off calendar, any orders submitted will be returned to the party and a new order must be submitted for the re-noticed hearing date. For orders in uncontested matters, see Section 1.E.

(Eff. 1/01/09)

G. ORDERS CORRECTING CLERICAL ERRORS

If, through inadvertence, the signed order fails to state the order actually made by the Court, and such inadvertence is brought to the attention of the Court, the Court may make an order correcting the mistake. The party must submit an affidavit or a declaration stating the reason for the amended order. The revised order must take the form of an amended order, setting out the entire order in full as corrected.

(Eff. 1/01/09)

H. LATE FILINGS

All pleadings, documents, and other papers filed within 10 days of the scheduled hearing date must be delivered directly to the Probate Examiner's office for review.

I. FACSIMILE FILING

(1) GENERAL POLICY

The Probate Department hereby adopts CRC 2.300 et seq., allowing for the facsimile filing of documents in matters covered by the Probate Rules.

(Eff. 1/01/08)

(2) AGENCY FILING

Pursuant to CRC 2.303, the court will accept for filing all documents submitted by fax filing agencies except those documents specified in CRC 2.300.

(Eff. 7/01/07)

(3) DIRECT FILING

a. The Court elects to allow the filing of documents by facsimile transmission through an automated facsimile filing service, which will send facsimiles directly to the court. This version of direct filing does not permit persons to transmit materials from their own facsimile machines to the court for filing. All provisions of CRC 2.304, apply to direct filing by facsimile. Direct filings are made through an independent agency under contract with the Superior Court.

(Eff. 7/01/07)

b. The facsimile machine of the independent agency must be available 24 hours a day, although filings received by the agency after 4:00 p.m. or on court holidays shall be deemed filed on the next court day.

c. Automated fax filing service must be activated by calling 1-800-322-4945. Activation will require placing on file a Visa or Mastercard credit card number, expiration date, and fax number of the transmitting fax machine. Confidentiality of the credit card number will be maintained. Those persons registered to use the service will be provided with the automated fax filing telephone number. For questions about fax filing, call Official Payments Corporation at 1-800-487-4567.

d. In addition to filing and facsimile transmission fees, parties filing new petitions will be charged an additional fee for postage and handling for issuance of citations and notices issued by the court at time of filing.

e. Faxed documents must comply with all filing requirements of the California Rules of Court and the Local rules of the probate department. Compliance with filing requirements and proper transmission of the documents are the responsibility of the sending party and the automated fax filing service.

(Eff. 7/01/07)

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